Wednesday, April 09, 2014

Simmons-Fueled Miscalculation of Career Offender Status Can Be Reviewed In 2255 Proceeding

Whiteside v. US: This is yet another in the line of cases arising from the Fourth Circuit's sea change on how it views North Carolina's sentencing scheme in Simmons. Whiteside was classified as a career offender before Simmons based on a pair of North Carolina convictions. Within a year of Simmons being decided, but more than a year after his case had become "final," Whiteside filed a 2255 motion seeking to vacate his sentence. The district court dismissed the motion, concluding that it was untimely, that Whiteside had waived his right to file it due to a waiver in his plea agreement, and that, at any rate, he had no right to relief because his sentence was within the correct statutory range.

A deeply divided Fourth Circuit reversed. Judge Gregory, for the majority, first concluded that Whiteside had not waived his right to file the 2255 motion, noting that there was conflicting language in the agreement and, when construed against the Government, Whiteside's challenge to his career offender status was not waived.

Second, the court concluded that although Whiteside's motion was filed outside the usual one-year window, it was filed within one year of the decision in Simmons and equitable tolling applied because extraordinary circumstances (of which Whiteside had no control) prevented him from filing the motion earlier. Those circumstances, the court candidly acknowledges, included its own incorrect decisions about the North Carolina scheme before it reversed course in Simmons. Specifically, had Whiteside filed a 2255 motion within one year of his case becoming final, it would have been futile under then binding Fourth Circuit law. The court labelled the Government's argument that he should have filed one anyway as "having an air of absurdity about it."

Finally, turning to the merits, the court concluded that Whiteside could challenge his sentence collaterally due to "an incorrect application of the career offender enhancement." It distinguished this from the "ordinary misapplication" of the Guidelines, which is not a "miscarriage of justice" and not subject to collateral attack. In response to the dissent, it points out that the "career offender enhancement is plainly not a run-of-the-mill guideline." In doing so, the court noted that other circuits have not reached the same conclusion, except for the Eleventh Circuit, in a panel decision that's already been vacated pending an en banc rehearing. Nonetheless, relying on recent Supreme Court decisions emphasizing the key role of the Guidelines in a post-Booker world, the court held that an erroneous career offender designation meets the high standard required for 2255 relief. It rejected the Government's argument that the sentence was "lawful" because it was within the applicable statutory range, aside from any Guideline issues. Whiteside's sentence was vacated and remanded for further proceedings.

Judge Wilkinson wrote a lengthy dissent, in which he argued that the court's decision was a "dramatic expansion of federal collateral review" that "makes a shambles of the retroactivity doctrines that have long safeguarded the basic finality of criminal convictions." He argued that Whiteside's sentence was not improper when it was applied and that no change in the law sense makes it the kind of violation (a due process violation, specifically) that is reviewable in a 2255 proceeding. He also argued that there was no miscarriage of justice in Whiteside's sentence, noting how divided the court was when Simmons itself was decided. To conclude otherwise was to "adopt a naively Whig history of law as an unbroken march toward progress and enlightenment." (To which the majority responds that the dissent is "rank with the fearful mistrust of individualized decision-making inherent to traditional conservatism."). He also argued that Whiteside's motion was untimely and that futility was not a valid reason for not filing a 2255 before Simmons was decided. Wilkinson concluded that "I view this decision as wholly wrong and deeply damaging to our criminal-justice system."

Senior Judge Davis concurred, noting that the majority opinion "fully responds to the dissent's overwrought and formalistic protestations that our judgment here presages an end to law as we know it." He called the dissent "hopelessly pleased with itself . . . as it prostrates itself at the altar of finality." He also took the dissent and the Government to task for putting control of whether such cases would be reviewed in the hands of the Department of Justice (which, the opinion shows, had frequently not invoked waivers in similar cases), rather than the courts.

Congrats to the Defender office in the Western District of NC on the win!

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